Cortex Fan License Published

The fan license which allows you to create free material for Cortex Prime was announced by Fandom yesterday.

Fandom acquired the Cortex Prime system recently, and is also the owner of D&D Beyond.

The announcement was greeted with negative feedback about its restrictions by the community. The Community License grants ownership of any mechanics created under the license (but not 'lore' such as names, art, fiction, etc.) Additionally, Fandom can terminate the license at any time. The usage of the Cortex Prime mechanics is limited in that fans cannot "decompile, disassemble, or reverse engineer the Cortex System, or any component thereof, by any means whatsoever."

In the comments under the announcement, Fandom confirmed that fan creations could not be distributed via DriveThruRPG or Itch.io because those platforms "grants them rights to specific parts of the content, including content that the community license does not grant you the rights to." I'm not familiar with Itch's terms, but DTRPG doesn't acquire any rights to content distributed on the platform.

Fandom does confirm in the comments that people can create their own versions of the Cortex mechanics without using the license; but by doing so you can't call it Cortex or use the resources Fandom provides. Mechanics in themselves cannot be copyrighted, but the expression (the text used) to describe them can.

Those wishing to sell their work will be able to use the Cortex Creator Studio, which will become available at a later date. The commercial license requires an application.

 

[Greatwyrm]

I like Cortex and I want to see them succeed. They don't need to give away the store, but their main strength right now is a dedicated fan base and it looks like they're making it difficult for those fans to help them out. It took quite a while just to get the main book out in pdf. I think the Dragon Prince rpg has been in pre-order for about a year with "soon" as a delivery target. Maybe let the fans carry the flag for a while until the "big" releases hit?

In other news, I never cease to be amazed that we still get arguments about what the OGL does 20 years later.

 

[Grantypants]

WotC doesn't need to licence its works to itself!

And those books are not governed by the OGL. It is the SRD that WotC has released under the OGL.

Of course they don't. I'm talking about how to prove that some user has accepted the terms of a license agreement. My point is to contrast the OGL with shrinkwrap and clickwrap licenses for software. With those software agreements, you can't use the website or app or whatever without clicking a box that says "I agree" to the terms. If you don't agree, you can't use the software, so if you're using the software, you must have agreed to the terms (at least in the eyes of the court).

On the other hand, just playing D&D or using its rules for something doesn't prove you saw or even know about the OGL. If WotC wants to prove that you agreed to the terms of the OGL, they'd have to first prove you knew about the OGL. Since the OGL terms are not in any of the official WotC books, it's perfectly possible to play D&D and use the rules that also appear in the SRD without ever knowing about or agreeing to the terms in the OGL.

This Cortex license seems to be written as if it was the first kind of license, one where they can stop you from using the product if you don't agree to the terms. If Fandom wants to use that license as a requirement for accessing their upcoming website, they can, but they can't enforce their license against people who haven't agreed to it.

 

[darjr]

I dunno. I mean if your going to publish something there is an expectation, nay, a bit of an obligation, that you’ll look into copyright and licensing of any IP you are planning to work with or want to include. And if you do I think there is a fairly good chance you’ll see the OGL. Or at least something about copyright. Am I wrong?

 

[FormerLurker]

I dunno. I mean if your going to publish something there is an expectation, nay, a bit of an obligation, that you’ll look into copyright and licensing of any IP you are planning to work with or want to include. And if you do I think there is a fairly good chance you’ll see the OGL. Or at least something about copyright. Am I wrong?

For publishing in a commercial sense, absolutely.
For a fan sharing their homebrew freely with the internet, maybe not. There's nothing in the core books about the SRD and OGL. Or even about the DMsGuild. (And the whole point of the DMsGuild is that you don't need to worry about the OGL or strict details of the licence.) And there's a heck of a lot of content on the Guild that doesn't even obey it's simple rules...

The 16-year-old teen who discovered D&D recently and is throwing their custom feat or race into Homebrewery and then sharing it on Reddit or Instagram (or ENWorld) isn't necessarily going to have heard of the OGL. Let alone be in a position to understand it.
There's all manner of flatly illegal D&D stuff online, from the race with stolen art to a full 5e Mass Effect ruleset: Mass Effect 5e

The OGL is very much a "commercial licence." Which the Cortex licence being discussed is not. It is (or should be) more akin to the WotC fan sit: Fan Site Kit | Dungeons & Dragons

 

[darjr]

Yea, but I dint see WotC going after most of them, only the ones that either have complete copies or “remasters”of their content (Starfrontiers) or those going commercial.

The prior is out of scope, mostly, for any of this license talk, the latter fits my comment.

And “going after” is probably to strong a term.

But, I think I’ve lost the plot of this particular conversation. So forgive me. I’ll just move in.

 

[pemerton]

Of course they don't. I'm talking about how to prove that some user has accepted the terms of a license agreement. My point is to contrast the OGL with shrinkwrap and clickwrap licenses for software. With those software agreements, you can't use the website or app or whatever without clicking a box that says "I agree" to the terms. If you don't agree, you can't use the software, so if you're using the software, you must have agreed to the terms (at least in the eyes of the court).

On the other hand, just playing D&D or using its rules for something doesn't prove you saw or even know about the OGL. If WotC wants to prove that you agreed to the terms of the OGL, they'd have to first prove you knew about the OGL. Since the OGL terms are not in any of the official WotC books, it's perfectly possible to play D&D and use the rules that also appear in the SRD without ever knowing about or agreeing to the terms in the OGL.

This Cortex license seems to be written as if it was the first kind of license, one where they can stop you from using the product if you don't agree to the terms. If Fandom wants to use that license as a requirement for accessing their upcoming website, they can, but they can't enforce their license against people who haven't agreed to it.

OK, I get where you were going.

Yes, the drafting of the licence is weird. It states that acceptance is generated by playing/using Cortex:

By using any aspect of the Cortex System (e.g., by creating Products on the Cortex Platform), you acknowledge that you have read, understand and agree to be bound by this Non-Commercial Community License Agreement re Cortex ("License").​

That's obviously absurd. There's no process of offer and acceptance. Even if they printed it in their books, it still wouldn't bind the purchaser of the book, because the only thing that the licence confers - "a personal, limited, non-exclusive license to use the Cortex System to create Cortex System-compatible products (“Products”) for your personal, limited non-commercial use" - is already conferred by purchasing the book (what else is a RPG book doing?). Likewise, if you buy a book then you can give it away to whomever you like, contra this term of the clause 1: "You are prohibited from sub-licensing, renting, leasing or otherwise distributing the Cortex System or rights to use the Cortex System."

The limitation in clause 2 - "You may not remove or alter Fandom's trademarks or logos, or legal notices included in the Cortex System or related assets" - implies that this is a licence intended to permit some sort of use of Cortex trademarks in a limited fashion. Maybe by "Cortex System-compatible products" they mean products branded as Cortex compatible? This impression is reinforced by this, also from clause 2 - "You must use your best efforts to preserve the high standard of our trademarks."

I think if I write on my book This is compatible with Cortex Prime I'm probably not using their trademark in such a fashion as to require a licence, and I wouldn't accept their offer of a licence. So for the licence to actually have any value I must be using their trademark in some more trademark-y fashion. But they then say (also clause 2) that "You may not use Fandom's trade dress for your Products or advertisements" which makes me wonder what exactly is being licensed?

I think it's a bit of a mess.

I mean if your going to publish something there is an expectation, nay, a bit of an obligation, that you’ll look into copyright and licensing of any IP you are planning to work with or want to include. And if you do I think there is a fairly good chance you’ll see the OGL. Or at least something about copyright. Am I wrong?

The reason I need a licence is to use someone else's IP: eg if I'm using their software on my computer (which involves copying it) or if I'm printing some of their text or if I'm using their trademark in the course of my trade.

But just playing a RPG doesn't require a licence beyond what is implicitly granted by selling the book in the first place, which is clearly sold as a tool for playing RPGs. (Eg WotC can't assert that your creation of stories at your RPG table involving Venca and Acerack is a breach of their copyright, given they sold their books precisely so that purchasers could create such stories at their tables.)

And even if you are doing something that requires a licence, I don't think that you can accept Fandom's offer of a licence just by doing the thing that requires a licence. Acceptance requires some sort of mental advertence to the accepting of the licence - eg clicking a clearly-labelled button, opening a clearly-labelled package, etc.

 

[Aldarc]

There is apparently a second version of the Cortex Prime Community License in the works.

 

[Blue]

There is apparently a second version of the Cortex Prime Community License in the works.

To build on this, from the last Kickstarter update from Community Manager Mellie Doucette:

Community License Prime​

Last month we released our Non-Commercial license and applications for Commercial licenses, and it became clear that we missed the mark. Our intentions didn’t fully match up to what was delivered, and you folks here (and in our Discord, on social media, and other places in our community) provided us with instrumental feedback that I was able to bring back to our teams.


I’m pleased to say that a Version 2 of the license is well in progress, left in a pretty solid place before the Fandom offices closed for the holidays. I’m supremely anxious to get this updated version out to everyone, and in the meantime greatly appreciate the patience you’ve been showing as those gears turn.

 

[Dausuul]

I think the operative parts of the OGL are:

2. The License: This License applies to any Open Game Content that contains a notice indicating that the Open Game Content may only be Used under and in terms of this License. You must affix such a notice to any Open Game Content that you Use. No terms may be added to or subtracted from this License except as described by the License itself. No other terms or conditions may be applied to any Open Game Content distributed using this License.

3. Offer and Acceptance: By Using the Open Game Content You indicate Your acceptance of the terms of this License.

4. Grant and Consideration: In consideration for agreeing to use this License, the Contributors grant You a perpetual, worldwide, royalty-free, non-exclusive license with the exact terms of this License to Use, the Open Game Content.

So the OGL applies to content that contains a notice that you are using the license. There's also a later clause that says you must include a copy of the OGL in any work that uses it. I'm not a lawyer, but I think this seems pretty water tight from both sides. No notice, no license used, and you're instead dealing with normal copyright law. Include notice and otherwise follow the requirements of the license, and you instead need to follow those terms.

As for official WOTC material not including the OGL, that's because they (with the exception of, IIRC, parts of the 3.0 MM2) are not released under the license. Wizards does not need to follow the license in order to publish D&D material, because they own the material in the first place (though they could, in theory, use OGC created by others by following the terms of the license). Instead, Wizards has released under the OGL a separate document (well, a number of separate documents) called the System Reference Document which has a lot of similarities to the D&D books, but is not the same thing. That's why the sections 15 of OGL material for 5e say "System Reference Document 5.1 Copyright 2016, Wizards of the Coast, Inc.; Authors Mike Mearls, Jeremy Crawford, Chris Perkins, Rodney Thompson, Peter Lee, James Wyatt, Robert J. Schwalb, Bruce R. Cordell, Chris Sims, and Steve Townshend, based on original material by E. Gary Gygax and Dave Arneson." — that's the source material 5e OGL material is based on, not the PHB/DMG/MM. For example, you wouldn't be able to use hunger of Hadar in a book released under the OGL, because hunger of Hadar isn't in the SRD.

You can't unilaterally declare that someone else has surrendered rights they would otherwise possess. For example, I have certain rights under fair use to copy a limited amount of material; the publisher can't just announce that exercising those rights binds me to the terms of their license. (Well, they can, but it won't stick.)

Now, if it were tied to my purchase of the book, maybe it'd hold up. But otherwise, no.

 

[Staffan]

You can't unilaterally declare that someone else has surrendered rights they would otherwise possess. For example, I have certain rights under fair use to copy a limited amount of material; the publisher can't just announce that exercising those rights binds me to the terms of their license. (Well, they can, but it won't stick.)

Now, if it were tied to my purchase of the book, maybe it'd hold up. But otherwise, no.

Sure, there is a certain amount of stuff you can do and claim fair use. Exactly where that limit is is a matter for courts to decide. You might be able to publish a book that includes a warlock with the ability to cast hunger of Hadar. Or you might not. And if the folks at Wizards decides that they don't want you to do that, fighting a legal battle with a megacorp like Hasbro can be really expensive.

But if you do include the OGL in your work, you have accepted the terms of the OGL, and are thus bound by it.